Waterfield v Capaldi (No 2) [2008] NSWDC 309

New South Wales District Court

CITATION: Waterfield v Capaldi (No 2) [2008] NSWDC 309

HEARING DATE(S): 3 December 2008 EX TEMPORE JUDGMENT DATE : 3 December 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

Further to the orders made on 28 November 2008: DECISION: 4 The plaintiff is to pay the defendant's costs of the proceedings, including the costs of the cross-claim. 5 The exhibits will be returned and the offer of compromise and the time lines.

CATCHWORDS: PROPERTY (RELATIONSHIPS) ACT - costs - where plaintiff's position based on overstatement.

PARTIES: Ivan Waterfield (Plaintiff) Emma Jane Capaldi (Defendant)

FILE NUMBER(S): Newcastle 164/07

COUNSEL: W J Tregilgas (Plaintiff) S C Austin (Defendant)

SOLICITORS: Burke & Elphick (Plaintiff) Thomas Mitchell (Defendant)

JUDGMENT

1 In this matter the proceedings were heard on 26 November 2008 and reasons delivered on 28 November 2008, as a result of which I made orders concerning the adjustment of the property interests of the parties to the proceedings. The matter was adjourned to today's date to deal with the issue of costs.

2 The defendant asks for costs on an ordinary basis, having achieved an adjustment in her favour greater than that proposed by the plaintiff. The plaintiff argues that it would be appropriate that I make no order for costs or that I award the defendant part of her costs only.

3 The defendant's application is based upon the assertion that her cross-claim sought an adjustment of property interests as to 60 per cent to the plaintiff and 40 per cent to the defendant, which is precisely the result that was achieved as a result of the hearing. That is a correct assessment of the outcome on a percentage basis but it does not accord with the figures that are contained in the pleadings and it does not accord with the position taken by the defendant at the hearing, namely that there ought to be an adjustment in the proportions 55 and 45 per cent.